Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION V.

Payment being made, who understood to have advanced the Money.

The Creditors of John Corse
v.
James Pedie, John Luke, and other Partners of the Easter Sugary of Glasgow

Date: 24 February 1708
Case No. No 202.

Where a person had subscribed the books of a company for others. The money paid was presumed to have been advanced by these parties to their mandatary.

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John Corse having subscribed, in the books of the African Company, L. 500 for himself, as much for James Pedie, and the like sums for John Luke, Robert Corse, and William Corse, and for Robert and George Bogle, L. 250 each, extending in whole to L. 3000; and the payments made to the Company, conform to the subscription, being recorded in their books, either as made by John Corse and partners, or indefinitely as paid by the co-partners of the Sugary; and a certificate being given out, in the terms of the act of Parliament, stating these co-partners creditors of the Company in their several shares of what was paid up effeiring to their respective proportions of the stock, extending in the whole to L. 1343.—there arose a competition betwixt James Pedie, Robert Bogle, and John Luke, and the Creditors of John Corse.

Alleged for the Creditors of John Corse; That the whole L. 1343, with the interest thereof at five per cent. to the 1st of May last, belongs to them, in res pect John Corse, their bankrupt debtor, being the only subscriber and person bound to the African Company, and there being no obligation upon those for whom he subscribed, the moieties are presumed to have been paid out of John Corse's own money, unless the other parties prove that they made the payments themselves.

Answered for Pedie, Luke, and Bogle; John Corse's qualified subscription in the books was as valid an instruction of their shares, as if there had been formal transfers in their favours, at least equivalent to a backbond of the date, which would have so affected his share, as his creditors thereafter could not reach the same by diligence, to the prejudice of the co-partners. And though he only was bound to the Company, yet he did effectually communicate a share to the rest, and might no doubt have pursued them upon their oaths to pay and relieve him of their moieties. Again, seeing the payments are set down in the books indefinite, as from the partners of the Sugary, or from John Corse himself, and in name of the rest, law presumes the advance was made by all of them, unless the creditors of Corse will instruct scripto, or juramento, of the partners, that he made the whole payments; for had Corse been the sole payer, the payments would have been recorded in other terms, to clear that all was paid with his money.

The Lords considering, that John Corse signed the Company's books for James Pedie and John Luke, each of them L. 500 Sterling, and for Robert Bogle L. 250; and that the said persons are also stated as creditors to the Company in the said sums, by the certificate obtained from the Committee of Directors; therefore the Lords found, That John Corse's subscription was to the behoof of James Pedie, John Luke, and Robert Bogle effeiring to their respective above-mentioned sums, and that the money is presumed to have been advanced by them; unless it be offered to be proved by their writ or oath, that the money was not advanced by them, but by John Corse.

Fol. Dic. v. 2. p. 151. Forbes, p. 248.